Can a rare NC law prevent GenX lawsuits? Probably not

Wednesday

Feb 14, 2018 at 12:30 PMFeb 14, 2018 at 3:23 PM

The statute of repose was used to prevent Camp Lejeune suits, but changes mean it may not be used for GenX

By Adam Wagner GateHouse Media

WILMINGTON -- Legislative tweaks made in recent years to a rare law that limits when legal claims can be filed in contamination cases will likely benefit residents around the Fayetteville Works plant at the center of GenX cases, said a North Carolina environmental law expert.

North Carolina is one of four states with a statute of repose for environmental contamination -- a law that limits how long after contamination ceases a lawsuit can be filed, even if diseases potentially linked to the contamination do not reveal themselves for longer than the statute of repose.

"The reason the statute of repose was a problem is some of those health effects may not be apparent until 15 years after you've drunk the water," said Robin Smith, a Raleigh attorney and former assistant secretary of the N.C. Department of Environmental Quality (DEQ).

In 2014, though, the N.C. General Assembly passed a pair of laws, first creating an exemption to the 10-year statute of repose in groundwater cases, and then later striking a sunset clause that would have seen the exemption expire in June 2023.

"It is limited to groundwater contamination, so it would not apply to anything caused by surface water contamination," Smith said.

While the exemption is not applicable to damages arising out of surface water contamination, a 2016 federal appeals court case addressed the matter.

CTS cases

The statute of repose legislation came soon after the U.S. Supreme Court's 2014 ruling in CTS Corp. v. Waldburger.

That case focused on an electronic components factory in southern Asheville whose manufacturing process from 1959 to 1987 included trichloroethylene, or TCE. By the early 1990s, families on nearby parcels developed health problems such as cancer and pregnancy complications.

In 2009, the U.S. Environmental Protection Agency (EPA) confirmed the groundwater contamination and in 2011 lawsuits were filed seeking monetary damages. CTS claimed that its last act regarding the site was the 1987 sale, putting the lawsuits beyond the 10-year statute of repose.

"The problem with groundwater contamination," Smith said, "is a lot of the health effects are kind of long term. They might not be immediately apparent until more than 10 years after you've been drinking the water."

In the 2016 U.S. Court of Appeals for the Fourth Circuit case Stahle v. CTS Corporation, though, decided the statute of repose should not be applicable in cases of illness. Ken Stahle, who lived near the plant, argued that CTS dumped solvents from the plant into a local stream and that childhood exposure from that stream resulted in his leukemia.

"We conclude that the Supreme Court of North Carolina considers (the statute of repose) only applicable to certain injuries, and because disease is not a latent injury, we would not find (the statute of repose) applicable to Stahle's claim," the court wrote.

John Korzen, the director of the Appellate Advocacy Clinic at Wake Forest University School of Law, represented the plaintiffs in both CTS cases.

"Most states have said this (statute of repose) doesn't apply to disease, and then post-2014 it doesn't apply to a whole range of chemicals if there's been groundwater contamination," Korzen said.

'Outer limits'

A statute of repose should not, Smith added, be confused with a statute of limitations.

Should a plaintiff be diagnosed with a disease they believe is linked to chemical contamination, they have three years to file a claim seeking damages under the statute of limitations. But until the 2014 law was enacted, the statute of repose meant a company could not be sued for contamination outside of 10 years after it ceased operations.

"The 10 years was an outer limit," Smith said, "and the problem is an outer limit doesn't work well in cases like groundwater contamination health effects."

Contamination's long-term effects are something Jerry Ensminger and other victims of the Camp Lejeune contamination are all too aware of. Ensminger's young daughter, Janey, died of pediatric cancer in 1985.

Ensminger has spent much of the past two decades advocating for the Marines who were exposed to the same benzene and solvent-contaminated drinking water contamination at Camp Lejeune between 1957 and 1987. Samples showed wells at Camp Lejeune contained TCE, perchlorethylene, benzene and other compounds linked to a range of diseases including kidney cancer, liver cancer and multiple myeloma, among others.

During a GenX public meeting in Dublin, N.C., earlier this month, Ensminger stood to warn the residents in attendance to stay aware of their legal rights.

"Unfortunately, science is slow, and good science takes time to know and figure out what the harmful effects of this stuff is and how it effects humans and other things in the environment," Ensminger said this week.

Ultimately, a 2014 circuit court decision ruled that Camp Lejeune cases were outside of the statute of repose and no longer viable.

Reporter Adam Wagner can be reached at 910-343-2389 or Adam.Wagner@GateHouseMedia.com.

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